Recommending A Settlement?


Consider This – by Wayne M. Willoughby


Wayne M. Willoughby is a principal in the firm of Janet, Willoughby & Gershon, LLC in Baltimore, Maryland. Mr. Willoughby concentrates his practice in the area of professional liability, representing plaintiffs in legal and medical malpractice actions. Active in MTLA, Mr. Willoughby chairs the Medical Malpractice Legislative Sub-Committee, serves on the Amicus Committee and Trial Reporter Committee, and is a member of the President’s Club, as a Founder.


In 1995 the Court of Special Appeals issued an opinion purporting to afford the legal system in Maryland (and thus attor- neys) special protection from malpractice claims arising from attorney errors in judgment. Maryland’s intermediate ap- pellate court in Prande v. Bell, 105 Md. App. 636, 660 A.2d 1055 (1995) held that an attorney’s advice concerning settle- ment is a “judgment call,” and as such, an attorney cannot be held liable in mal- practice for making a bad settlement recommendation unless the aggrieved cli- ent can prove that “no reasonable attorney” would have made the recom- mendation.


Whatever protection Prande intended to provide was not long lived.


In 1998,


the Maryland Court of Appeals in Tho- mas v. Bethea, 351 Md. 513, 718 A.2d 1187 (1998) rejected the notion that at- torneys should be shielded from malpractice by a “heightened standard” of negligence. In so doing, the Court made clear that lawyers cannot hide be- hind the mantra of “it was a judgment call” to avoid malpractice liability.


In-


stead, negligence claims against attorneys in Maryland, even ones calling into ques- tion an attorney’s judgment, are evaluated under the traditional standards applicable to professional negligence claims. Moreover, Thomas adopted the “trial within a trial” approach to determining damages in a legal malpractice claim but left unanswered the question of how such a proceeding should be conducted. This article examines these two deci- sions and their potential impact on trial attorneys in Maryland.


PRANDE v. BELL


The plaintiff in Prande v. Bell retained a law firm to represent her in two sepa- rate motor vehicle accident claims, the “Spillman accident” of April, 1988 and the “Wishart accident” of September, 1988. In the Spillman accident, the plaintiff Prande alleged permanent and extensive injuries, including a severely


Winter 2000


ruptured disc in her neck requiring sur- gery in April, 1990, with associated pain, suffering and lost income. Later, in the Wishart accident she claimed an exacer- bation of her injuries from the Spillman incident, with additional pain and suffer- ing and lost income.1 Unfortunately for Prande (and her at- torneys), the cases did not develop as expected. Prande’s treating physician (Dr. Stopak) refused to testify on causation in the Spillman claim after learning (contrary to the history provided to him) that Prande told her chiropractor that she was injured in the Wishart accident. Prande’s attorneys determined that the case was weak due to the loss of the treating physi- cian as a witness on causation; the credibility problem created by the con- flicting histories given by Prande; and the fact that she was involved in a third mo- tor vehicle accident in August, 1990. According, Prande’s attorneys recom- mended that she settle the case for $7,500 even though her medical bills exceeded $20,000. Relying upon her attorneys’ advice that “she had no other choice,” Prande settled the claim against Spillman.2 Thereafter, Prande’s counsel advised her to settle the Wishart claim for $10,000, despite the fact she required additional surgery. Purportedly the rec- ommendation was based on several factors: 1) Prande


previously testified


under oath that she suffered no injury in the Wishart collision; 2) she testified that she entered the intersection under a yel- low light and that Wishart had the green arrow when he struck her car; 3) there was no witness to support the negligence claim; and, 4) Prande (contrary to her fee agreement) refused to pay for a medical witness to testify.


After agreeing to the settlement Prande refused to settle, 1


Prande, 105 Md. App. at 640-42, 660 A.2d at 1057.


2 Id. at 642-43, 660 A.2d at 1058. Trial Reporter


thereby prompting a motion to enforce the agreement, which was granted.3 Unable to pay her medical bills, Prande sought bankruptcy protection and then filed a legal malpractice action against her attorneys alleging they “negligently ad- vised plaintiff to accept unreasonable and inadequate settlements of her claims aris- ing out of the April and September accidents....”


The Circuit Court for


Montgomery County granted summary judgment on the basis of non-mutual col- lateral estoppel in that by agreeing to settle the underlying tort claims she was pre- cluded from relitigating those claims against her attorneys. 4 The Court of Special Appeals, finding no collateral estoppel, reversed the lower court and remanded the case for further proceedings.5


In so doing, Judge Alpert,


writing for the three judge panel includ- ing then Chief Judge Wilner and Judge Cathell, observed that the Pennsylvania Supreme Court in Muhammad v. Strassbuger et al., 526 Pa. 541, 587 A.2d 1346, reh’g denied, 528 Pa. 345, 598 A.2d 27, cert. denied, 502 U.S. 867, 112 S. Ct. 196, 116 L. Ed. 2d.156 (1991), likewise rejected the notion that a client who settles the underlying claim is collaterally es- topped. Nevertheless, the Pennsylvania court held as a matter of public policy that such a malpractice claim could only be brought if the settlement were fraudu- lently induced: The primary reason we decide today to disallow negligence . . . suits against lawyers after a settlement has been ne- gotiated by the attorneys and accepted by the clients is that to allow them will create chaos in our civil litigation sys- tem. Lawyers would be reluctant to settle a case for fear some enterprising attorney representing a disgruntled cli- ent will find a way to sue them for something that ‘could have been done,


(Continued on page 26)


3 Id. at 644-45, 660 A.2d at 1059. 4 Id. at 645-46, 660 A.2d at 1059-60.


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